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Wednesday, January 25, 2012

GPX Update (Bi-partisan Punting Edition) [UPDATED]

The office of House Ways & Means Chair Dave Camp (R-MI) provides us today with a little update to my novel-length post on the current mess that is the United States now-illegal (according to US courts and the WTO) application of countervailing duties (CVDs) to imports from non-market economies:

Ways and Means Chairman Dave Camp (R-MI) issued the following statement in response to the decision by the Court of Appeals for the Federal Circuit to grant an extension for filing a rehearing request in the ongoing litigation about the application of the countervailing duty laws to non-market economies such as China.

“We must do everything we can to ensure that the Department of Commerce can continue to fight subsidies granted by countries like China that unfairly injure our industries, cost U.S. jobs, and distort the market. I am concerned about the underlying decision by the Court of Appeals for the Federal Circuit that the Commerce Department lacks authority to apply the countervailing duty law to subsidies from non-market economies like China. As such, I welcome the news that the Court has granted the Administration additional time to prepare a request for a rehearing. The Administration must pursue all available legal avenues to overturn the underlying decision, which I believe was wrongly decided.

“In addition, I am willing to consider targeted legislation that ensures our countervailing duty laws can be used to protect U.S. employers and workers from unfairly subsidized imports from countries like China. I look forward to continuing to work with my colleagues in the House and Senate, and with the Administration, to explore legislative options. Any such legislation would have to be narrowly targeted, ensure that U.S. application of its countervailing duty laws complies with its WTO obligations, and will pass the House and Senate without complications."

The Obama administration apparently sought a 60-day extension, but the Chinese plaintiffs strenuously objected to anything more than two weeks (and for good reason). The CAFC split the difference and gave the administration 30 more days to avoid complying with US law and WTO rulesdetermine a sound legal basis for an appeal. This delay might affect the timeframe for the CAFC's decision on (and likely rejection of) any administration appeal, but it probably won't change the ultimate October deadline for congressional action that I outlined in my earlier blog post.

[UPDATE: A few legal experts have suggested that the CAFC would have to grant a "stay" of its order, pending the outcome of a Supreme Court appeal, for the order not to take effect (and force DOC to act) after the CAFC's denial of any re-hearing request. Granting that stay seems likely, but the same experts opine that if a stay weren't granted, interested parties could start challenging the existing orders immediately rather than wait for the outcome of the Supreme Court's decision. Yet another wrinkle.]

[UPDATE2:I've now heard from other trade lawyers who insist that a "stay" would not be necessary, as long as the US Government appeals to the Supreme Court. As such, the order cannot to take effect until the Supreme Court denies cert. More to come, I'm sure.]

Meanwhile, Chairman's Camp's unabashed support for new CVD-NME legislation and vocal opposition to the CAFC decision just goes to show that, when it comes to our problematic trade remedies laws, bi-partisanship is alive and well in Washington, DC.

Maybe Camp and Obama can muster even more bi-partisanship and engineer another legal delay. If so, they might just be able to punt this important bilateral trade decision past Election Day.